Court: Limit governor’s emergency powers

In affirming the General Assembly’s ability to hand over emergency powers to the governor, and in finding Lamont has not exceeded the authority granted, the high court also issued a subtle warning, one the legislature should heed.

In a unanimous decision, the Connecticut Supreme Court this week affirmed the constitutionality of state laws that for more than a year have allowed Gov. Ned Lamont to act with emergency powers, setting rules for daily life that would have been unimaginable before this pandemic hit.

But in affirming the General Assembly’s ability to hand over such power to the governor, and in finding Lamont has not exceeded the authority granted, the high court also issued a subtle warning, one that the legislature should heed.

Lamont invoked two state laws in declaring an emergency when the crisis began — the public health law that allows the governor to act to protect the collective health of Connecticut residents, and a civil preparedness law that empowers the governor to act unilaterally to respond to a catastrophe or major disaster.

The public health emergency rules provide for a special legislative committee to block the governor if it concludes he is acting inappropriately. The civil preparedness statute provides no such oversight, except in the case of manmade disasters.

While folks may certainly disagree with some of the many executive orders that Lamont has issued, few would claim he has sought to abuse his power. But the court, in its ruling, has signaled that the potential for abuse exists. A governor could invoke the civil preparedness emergency provision on dubious grounds and the legislature would have no clear path to wrestle power back from him.

“The legislature may also deem it proper to impose greater oversight of the governor’s actions during a proclaimed civil preparedness emergency or otherwise amend or repeal (the statute) to further limit the governor’s authority,” stated Justice Andrew J. McDonald in writing the court’s opinion.

“This could be addressed by the General Assembly in its current, or a future, legislative session,” McDonald writes elsewhere in the decision.

The legislature has been warned and should act.

The decision supplied the full framework for a brief order the court issued late last year that allowed the governor’s emergency authority to stand. Lamont had been challenged by a Milford pub owner who argued the governor had exceeded his authority in closing down bars and that the legislature had unconstitutionally surrendered such authority to him.

Wisely, the court declared it would not examine the hundreds of orders issued by Lamont to assess their constitutional muster, but instead would focus on the broader issue of his emergency powers.

A governor would have to stray far outside his authority for the courts to intervene, the Supreme Court ruled.

“The governor would not, for example, be able to issue an executive order forbidding restaurants from selling unhealthy foods during the COVID-19 pandemic. Although eating healthy foods is undoubtedly related to the health and welfare of the people of this state, such an action is not reasonably necessary to address the current pandemic,” states the ruling.

Conversely, keeping people out of bars when a new and highly contagious virus is spreading through the state stays well within the lines of the governor’s authority.

Coincidentally, the day after the Supreme Court issued its decision the Senate approved a bill that ratifies Gov. Ned Lamont’s emergency declarations and extends his authority to May 20. His authority had been set to expire April 20.

It was important that the full legislature approve the extension. A prior extension on Sept. 1, 2020, and a threemonth extension on Jan. 26, were authorized by a special committee of 10 legislative leaders.

It was unfortunate that the vote was partisan, with Democrats in favor and Republicans against. Republicans want greater checks on the emergency authority and a clearer path to unwinding it. They have a point.

We again urge that discussions begin between legislative leaders and the administration to develop a timetable and an exit plan for getting back to normal governance, one that perhaps maintains some authority for the governor in specific areas, but after May 20 ends the broad authority he has wielded since March 2020.